M V RAJASHKHAR Vs. M V RAJAMMA

JUDGEMENT

(1.) THIS is the plaintiffs revision, being aggrieved of the Order passed in O. S. No. 292/1995 on the file of the I Addl. Civil judge (Sr. Dri.) an CJM. , Mysore, dated 10-6-2003, staying further proceedings of the suit pending disposal of O. S. No. 13/2000, pending before the High Court of Madras.

(2.) THE brief facts of the case are as follows : the plaintiff M. V. Rajashekhar filed O. S. No. 292/1995 against defendant Nos. 1 to 6 and others for partition and separate possession of the suit schedule properties described in Schedule "a, B, C, D and E, situated at Mysore and Madras. The plaintiffs father late M. C. Veerappa had two wives viz. , Smt. M. V. Rajamma and Smt. Meenakshamma. Defendant No. 1 Smt. M. V. Rajainma had no issues. Plaintiff and defendant Nos. 3 to 6 are the children of smt. Mt enakshamma through late M. C. Veerappa. After the death of Sri M. C. Veerappa, present suit O. S. No. 292/1995 was filed on 21-9-1995 for partition and separate possession of their respective shares. Defendant No. 1-Smt. M. V. Rajamma having entered appearance filed the written statement pleading that the entire suit schedule properties are of her self-acquired properties. It appears that defendant No. l smt. M. V. Rajamma executed a Will dated 31-3-1997 in favour of respondent Nos. 1 (a) to (e) during the pendency of the suit and she died on 23-4-1999. After the death of smt. M. V. Rajamma, the legatees who have been residing at Madras initiated probate proceedings in O. P. No. 862/1999 before the High Court of Madras. The plaintiff herein appeared before the High Court of madras on service of notice and filed objections. Thereafter, the probate proceedings came to be converted into original suit and numbered as O. S. No. 13/2000. At that stage, the legatees having come on record as legal representatives of Smt. M. V. Rajamma for a limited purpose filed an application under Section 10 of C. P. C. to stay the further proceedings in O. S. No. 292/ 1995, pending disposal of O. S. No. 13/2000, pending before the High Court of Madras. The learned I Addl. Civil Judge (Sr. Dn.)and C. J. M. , after hearing both the learned counsel, by his Order dated 10-6-2003 passed the impugned Order by exercising inherent powers under Section 151 of CPC staying the further proceedings of O. S. No. 292/1995, pending disposal of O. S. No. 13/ 2000, pending before the High Court of madras. It is this order, which is questioned in the present revision.

(3.) LEARNED Counsel Sri Y. K. Narayana sharma contended that the suit of the plaintiff is for partition and separate possession against defendant Nos. 1 to 6. The suit properties are the properties of his father late M. C. Veerappa. It appears that during the pendency of the partition suit, defendant no. 1 Smt. M. V. Rajamma executed a Will dated 31-3-1997 in favour of respondent nos. 1 (a) to (e) with an intent to defraud the plaintiff and other children of Smt. Meenakshama-2nd wife of late M. C. Veerappa. Learned counsel further contended that respondent Nos. 1 (a) to (e) claiming to be the legatees under the Will, initiated probate proceedings before the High court of Madras in O. P. No. 862/1999 and the same came to be converted into O. S. No. 13/2000. Therefore, contended that when an application is filed under Section 10 of C. P. C. , the learned I Addl. Civil Judge (Sr. Dn.) and CJM, has erred in exercising his inherent power under Section 151 of C. P. C. Section 10 of C. P. C. makes clear that it is the subsequent suit, which has to be stayed and not earlier suit. Also contended that this Court is entitled to exercise its inherent power under Section 151 of C. P. C. In the instant case, the very filing of the suit is for partition, wherein the proceedings before the High Court of Madras came to be initiated during 1999. Therefore, the learned i Addl. Civil Judge (Sr. Dn.) and CJM. , has apparently erred in staying the further proceedings of O. S. No. 292/1995 by invoking section 151 of C. P. C. Also contended that in case, if it is proved by the plaintiff that the schedule properties are the properties of his father late M. C. Veerappa, naturally entitled for his legitimate share. Therefore, staying of further proceedings of the suit on this ground is also not sustainable, nextly contended that in the probate proceedings, which has been converted into original suit, the title of the parties cannot be adjudicated. What has to be considered is whether the will executed is in accordance with law or not. Therefore, the staying of further proceedings is erroneous. Accordingly, prayed to allow the revision by setting aside the impugned order.